SANDEEP NARESH OHRI, MUMBAI v. ITO 11(3) (2), MUMBAI

ITA 4149/MUM/2010 | 2006-2007
Pronouncement Date: 28-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 414919914 RSA 2010
Assessee PAN AAAPO2682G
Bench Mumbai
Appeal Number ITA 4149/MUM/2010
Duration Of Justice 1 year(s) 4 month(s) 7 day(s)
Appellant SANDEEP NARESH OHRI, MUMBAI
Respondent ITO 11(3) (2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 28-09-2011
Date Of Final Hearing 22-09-2011
Next Hearing Date 22-09-2011
Assessment Year 2006-2007
Appeal Filed On 21-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.4149/MUM/2010 (ASSESSMENT YEAR: 2006-07) MR. SANDEEP NARESH OHRI A-74 TRIPUATI TOWERS TAHKUR COMPLEX KANDIVALI (E) P MUMBAI -400 101 ....... APPELLANT VS ITO -WARD NO.11(3)(2) AAYAKAR BHAVAN M.K. ROAD MUMBAI -400 020 ..... RESPONDENT PAN: AAAPO 2682 G APPELLANT BY: SHRI SHEKHAR GUPTA RESPONDENT BY: SHRI A.K. NAYAK DATE OF HEARING: DATE OF PRONOUNCEMENT: 22.09.2011 28.09.2011 O R D E R PER R.S. PADVEKAR JM: IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-2 MUMBAI DATED 31.03.2010 FOR TH E A.Y. 2006-07. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROU NDS:- 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO ADOPTING THE SALE VALUE AS PER THE VALUATION FIXED BY THE STAMP AUTHO RITIES INSTEAD OF REFERRING THE MATTER TO THE VALUATION CE LL FOR ASCERTAINING THE FAIR MARKET VALUE OF THE PROPERTY. ITA 4149 /MUM/2010 MR. SANDEEP NARESH OHRI 2 2. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND O N THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN DI SALLOWING BROKERAGE OF ` 35 000/-. 2. BRIEFLY STATED THE FACTS ARE AS UNDER. THE ASSE SSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME FOR THE A Y. 2006-07 DECLARING LONG-TERM CAPITAL GAINS (LTCG) AT ` 4 09 208/-. THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE ASSE SSMENT WAS COMPLETED U/S.143(3) OF THE ACT. IT WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS SOLD RESIDENTIAL FLAT FOR THE SUM OF ` 28 LAKHS AND HAS SHOWN LONG-TERM CAPITAL GAINS OF ` 5 09 208/- FOR THE PURPOSE OF PAYMENT OF THE STAMP-DUTY. THE A.O. SUBSTITUTED SAL E CONSIDERATION WITH FAIR MARKET VALUE TAKEN FOR THE PAYMENT OF THE STAMP-DUTY A T THE TIME OF THE REGISTRATION OF THE CONVEYANCE AS PER THE PROVISIONS OF SEC. 50C OF THE ACT AT ` 33 09 108/- AND AFTER REDUCING THE INDEX COST AFTE R ACQUISITION DETERMINED THE LTCG ON THE SALE OF THE FLAT AT ` 10 53 316/-. THE ASSESSEE RESISTED THE ACTION OF T HE A.O. BY STATING THAT THE ASSESSEE WAS FACING LOT OF FINANCIAL PROBL EMS AND HENCE AS PER OFFERED PRICE THE FLAT WAS SOLD. THE ASSESSEE ALSO GAVE OTHER REASONS FOR SELLING THE PROPERTY AT ` 28 LAKHS. THE ASSESSEE CHALLENGED THE VALUATION ADOPTED BY THE A.O. BEFORE THE LD. CIT (A) BUT WITHOUT SUCCESS. NOW THE ASSESSEE IS IN APPEA L BEFORE US. 3. THE LD. COUNSEL ARGUES THAT WHEN THE ASSESSEE HA S TAKEN THE OBJECTION FOR ADOPTING FAIR MARKET VALUE MADE THE V ALUATION AS PER THE PROVISIONS OF SUB-SEC.(2) TO SEC. 50C THE A.O. SHOU LD HAVE REFERRED THE MATTER TO THE VALUATION OFFICER FOR VALUATION AND T HE ASSESSEE PRAYED FOR REFERRING THE SAME. WE HAVE ALSO HEARD THE LD. D.R. 4. WE FIND THAT BEFORE THE A.O. THE ASSESSEE HAS TR IED TO JUSTIFY A PRICE FOR WHICH THE FLAT WAS SOLD AND IN VIEW OF TH E PROVISIONS OF SUB- SEC.(2) TO SEC. 50C THE A.O. SHOULD HAVE REFERRED T HE MATTER FOR THE VALUATION. WE THEREFORE CONSIDERED IT FIT TO SET ASIDE THE VALUATION TO ITA 4149 /MUM/2010 MR. SANDEEP NARESH OHRI 3 THE FILE OF THE A.O. WITH THE DIRECTION TO REFER TH E SAME TO THE DVO AND AFTER RECEIVING THE REPORT OF THE DVO THEN TO DISPO SE OFF THE SAME AS PER THE PROVISIONS OF SUB-SEC. (3) TO SEC. 50C. AC CORDINGLY GROUND NO.1 IS ALLOWED FOR THE STATISTICAL PURPOSES. 5. SO FAR AS GROUND NO.2 IS CONCERNED THE LD. COUN SEL SUBMITS THAT AS PER THE INSTRUCTIONS OF THE ASSESSEE HE IS NOT PRESSING THE SAME. AS GROUND NO.2 IS NOT PRESSED THE SAME IS DI SMISSED AS NOT PRESSED. 6. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH SEPTEMBER 2011. SD/- SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI DATED : 28TH SEPTEMBER 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) -2 MUMBAI. 4) THE CIT-11 MUMBAI. 5) THE D.R. G BENCH MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T. MUMBAI *CHAVAN ITA 4149 /MUM/2010 MR. SANDEEP NARESH OHRI 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 15.09.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 19.09.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER